Accommodation of Medically Disabling Conditions
Background. FDA's duty to accommodate employees who are medically disabled is founded principally in statute (Federal Rehabilitation Act of 1973), and the NTEU-FDA Contract, Articles 38 and 51. Exactly what duty FDA has to initiate a necessary change in duty status, assignment or working condition, or in any other necessary benefit, special treatment, or accommodation in light of an acknowledged medically disabling condition that prevented an employee from performing the full range of his/her official duties was recently raised and answered negatively.
Index Case. A long time FDA CDER employee, Jane Doe, for the past several years found herself in a complex medical situation which her physicians had great difficulty sorting out. Because of her illnesses she had numerous medical appointments for diagnostic procedures and treatment, had a difficult time keeping up with her work load and could not accurately predict when she would be medically incapacitated and not be at work. Besides her own medical problems she was required to participate in the care of one of her minor children hospitalized with a serious medical illness. By the beginning of this year (2000) she had essentially exhausted all of her annual and sick leave caring for her child and her self. Her Alternative Work Schedule was Any 80. She actively participated in the financial support of the family commuting to Rockville from Frederick.
The fact that she was ill and cared for a family member with a serious medical illness was common knowledge in her office and known to her immediate supervisor and Division Director. Also well known was that she was under medical care, cooperated with her physicians in attempting to diagnosis and treat her illnesses, detested being ill and wanted to be cured of whatever maladies she had. That she might be exploiting her medical condition in order to avoid work was never seriously entertained by anyone. Her immediate supervisor met with her several times to discuss her situation and the fact that the Division needed her in the office during FDA normal business hours on a regular basis.
On June 7, 2000 her supervisor after consulting with employee relations put Jane Doe on leave restrictions in order to "assist" her in getting her back to work on a more regular basis and building up her sick and annual leave accounts. Under the terms of the leave restriction for example, whenever she did not come to work when ill, but had no approved leave to cover her absence she was immediately charged AWOL until such time that she provided medical documentation of her illness and such documentation was accepted by FDA. During the time she was AWOL she was not paid.
In order to "cover" complications of her illnesses which kept her absent from the office, Jane Doe sought to work as much as she could when she was well. For example, she sought to complete some of her basic work requirement on Saturdays. Following CDER ODE V's erroneous interpretation of the NTEU-FDA Collective Bargaining Agreement which is the subject of a Chapter Grievance (now posted on this web site) her supervisor withheld permission to work on Saturday, an authority the supervisor did not have under the Contract. Consequently when Jane Doe did not have leave to cover a medically indicated diagnostic procedure, she would sometimes postpone it. Consequently resolution of her medical condition was further delayed and in fact was never attained.
On July 31, 2000, Jane Doe suffered a catastrophic complication following surgical treatment, was hospitalized for over a month in an ICU and died on September 9, 2000. She was 46 years of age.
Subsequent to Jane Doe's demise, the union met with Jane Doe's supervisors Rosemary Cook, and Charles Ganley, M.D. and Theresa Foster of labor relations to explore whether there were alternative procedures other than leave restrictions to accommodate an employee with a known illness which complicated his or her ability to predict when he or she would be able to report for work. In short the agency took the position that though it might be sympathetic and had been in this case in the past to an employee's plight, it had NO duty to offer an accommodation. The agency insisted that the employee had the responsibility to REQUEST an accommodation. The agency agreed that no magic words were necessary in making a request. In this case, however, Jane Doe's request to fulfill some of her basic work requirement on Saturday when she was well (and on Any 80 in a Center with flexible time bands on Saturday) was NOT deemed to be a request for an accommodation.
The union finds FDA's (a Public Health Service Agency) position in this matter to be puzzling at best. CDER is loaded with physicians. The last time some of us went to medical school we were taught a patient's nonstandard performance or behavior in school, in the office, at home, in relation to his or her peers, etc might in fact be related to something going on in his/her own personal life including their family life. Physicians were taught it was their obligation to search for an underlying cause and not simply respond to what might be the symptoms of a problem. But you don't have to be a doctor to know this. The Cub Scout Leader Book of the Boy Scouts of America in the "boys, behavior and discipline" section suggests: "Get to know each boy and find out what makes him tick. Keep in touch with his family and be sensitive to what might be going on in other areas of his life."
The union has not asked, nor does it want FDA to pry into the personal lives of its employees [The NTEU-FDA Collective Bargaining Agreement does in fact, however, have a specific clause (Article 5, Section 4A) allowing a supervisor and employee to hold "discussions of a personal nature" without a union representative being present.] In this case Jane Doe's medical illnesses were well known to her colleagues and supervisors. Her supervisors, however, chose to diminish their importance when they imposed the leave restrictions and deny her requested accommodation to work on Saturday erroneously exercising an authority they did not have. In this they failed to give Jane Doe the full measure of dignity to which she was entitled in their "implementation of personnel policies and practices and conditions of work." See Contract, Article 5, Section 6A. Unfortunately the union has not found a specific Contract clause putting the responsibility for initiating an accommodation on FDA. The union has no power to enforce social and moral obligations.
The take home lesson is: If and when you cannot perform the full range of your official duties because of a medically disabling condition(s) the FDA imposes on you the duty to clearly request/initiate any related necessary change in duty status, assignment or working condition, or in any other necessary benefit, special treatment, or accommodation. Please act promptly - your job/health may be at stake.